The Assembly Committee on Natural Resources, Agriculture and Mining has set a work session and possible vote for today on the bill that would claim title to all federal lands in the state of Nevada.
Chairman Robin Titus of Smith Valley did so despite a 10-page opinion by the Legislative Counsel saying Assembly Bill 408 is unconstitutional and the fact the congressional act creating Nevada gave the federal government title to all public lands in the state.
Supporters of AB408 argue the federal government never legally acquired the lands that comprise 87 percent of the state because it never received state permission to own them.
In the 1864 Act of Congress enabling the People of Nevada to form a Constitution and State Government to become a state, Nevada agreed to three things.
First, there be no slavery nor indentured servitude allowed in the state.
Second, that religious freedom be protected.
And third: “That the people inhabiting said territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory and that the same shall be and remain at the sole and entire disposition of the United States.”
State Archivist Jeff Kintop said that enabling act was written by Rep. James Mitchell Ashley of Montana who wrote similar enabling acts to create the states of Nebraska and Colorado. He was tasked with getting President Lincoln the added votes needed to constitutionally bar slavery forever.
According to Kintop, Ashley said one of his goals was “negating so far as I can states’ rights.”
States rights was a sore subject because it was the legal foundation of the Confederate South’s assertion they had the right to secede.
Following the passage of that enabling act, Nevada’s Constitutional Convention incorporated the same language verbatim into the Nevada Constitution.
Since then, there have been numerous arguments in Nevada’s Legislative record on both sides of the issue.
In 1965, the state Legislature “declared valid all acquisitions of land by the United States to the Department of the Interior for the protection of natural resources.”
That legislation was repealed in 1981 at the urging of Elko Legislator Dean Rhoads, one of the founders of the Sagebrush Rebellion, and Battle Mountain Assemblyman John Marvel.
But, according to the Legislative Research Division’s Background Paper 95-7, that repeal “didn’t repudiate the validity of those acquisitions so it could be argued the state consented to federal control by the Department of the Interior of nearly all Nevada public lands.”
The 1979 Legislature, meanwhile, passed the Sagebrush Rebellion statute that declared Congress acted “outside the scope of its constitutional authority” when it required Nevada to include that clause in the state Constitution.
In the 1996 General Election, Ballot Question 4 amended the state constitution to remove that language. It was approved by 52.5 percent of voters — 234,206 to 181,743.
However, that amendment references the original enabling act’s statement the conditions for achieving statehood are “irrevocable without the consent of the United States….”
It says the Constitutional amendment is “effective on the date Congress consents to amendment or a legal determination is made that such consent is not necessary.”
No such consent has ever been granted by Congress and only direct legal challenge thus far upheld the federal government’s ownership of the public lands.
That statement was amplified by the legal division opinion which said the legal issue has been rejected by courts all the way to the Supreme Court and the state claim of ownership was “unsupported, unconstitutional and fails as a matter of law.”
It was unclear whether the Assembly committee would actually vote on AB408 today. Assembly Majority Leader Paul Anderson, R-Las Vegas, indicated in an interview earlier this week the measure was unlikely to go.
AB408, however, could be referred to the Ways and Means Committee since it has been ruled qualified for an exemption from the Friday committee passage deadline.